A court may (1) require a public body and its members comply with OML; (2) prohibit a public body and its members from violating the OML; (3) determine the applicability of the OML to matters or legal actions of the public body; (4) impose civil penalties; (5) assess costs and attorney fees; (6) order the removal of a public officer who acted with intent to deprive the public of information; and/or (7) “order such equitable relief as it deems appropriate in the circumstances.” A.R.S. § 38-431.07(A).
A court will address whether the meeting was subject to the Act, whether the meeting was properly closed, whether a proper exemption was asserted, whether to order future meetings opened, and the nature of the proper remedy.
The court will consider any issue raised by the pleadings that deal with compliance with the Open Meeting Law or for the purpose of having an action declared or determined to be null and void for having resulted in violations of the law. However, there is no private right to seek assessment of a civil penalty against a member of the public agency, nor is there any private right of action for damages arising out of violations of the law. Idaho Code § 74-208(6). Although not specifically defined, the reference to “damages” in Idaho Code § 74-208(6) is thought to refer only to money damages.
These are governed by Section 3(c) of the Act. The court may grant appropriate relief, including but not limited to a mandamus order to open a meeting, an injunction against future violations, or declaring null and void any final action taken at a closed meeting.
Although courts are authorized to declare null and void any final actions taken at a closed meeting in violation of the Act, 5 ILCS 120/3(c), such actions are not necessarily void. People ex rel. Graf v. Village of Lake Bluff, 321 Ill. App. 3d 897, 907, 748 N.E.2d 801, 811, 255 Ill. Dec. 97, 107 (2d Dist. 2001), rev’d on other grounds, 206 Ill. 2d 541, 795 N.E.2d 281, 276 Ill. Dec. 928 (2003). Relief under the Act is discretionary, see id., and minimal violations have been held not to support nullification of actions taken at such meetings. See Graf.
Chapter 21: If a plaintiff demonstrates that the governmental body in question is subject to the requirements of chapter 21 and that a closed session was held, the issue will be whether the action was in compliance with the statute.
Chapter 17A: The issue in a chapter 17A proceeding will be whether substantial rights of the petitioner have been prejudiced because the agency action is: (a) in violation of constitutional or statutory provisions; (b) in excess of the statutory authority of the agency; (c) in violation of an agency rule; (d) made upon unlawful procedure; (e) affected by other error of law; (f) in a contested case, unsupported by substantial evidence in the record made before the agency when that record is viewed as a whole; or (g) unreasonable, arbitrary or capricious or characterized by an abuse of discretion or a clearly unwarranted exercise of discretion.
In an original action or timely appeal of an Attorney General open meetings decision, the court will conduct a de novo review and determine whether the public agency complied with the Open Meetings Act, and if not, whether the "rule, resolution, regulation, ordinance or other formal action of a public agency" should be voided. Ky. Rev. Stat. 61.848(3) & (5).
Courts will issue injunctions requiring meetings to be opened or enjoining the presiding officer from closing a meeting in violation of the statute. The court may also void the decision or order prospective relief requiring future meetings to be open.
Courts have authority to nullify any action taken in violation of the Act, provided that nullification of actions does not apply to otherwise legal commitments affecting the public debt of the entity concerned. T.C.A. § 8-44-105. Furthermore, the court shall permanently enjoin any person found to be in violation of the Act, and each separate occurrence of meetings held in violation of the Act shall constitute a separate violation. T.C.A. § 8-44-106(c).
Entitlement to Fees: Where it has been proven that the petitioner substantially has prevailed in showing that there has been a violation of the Act, the Court then must determine whether there are special circumstances making an award of attorneys' fees unjust. Hale v. Washington County Sch. Bd., 241 Va. 76, 82, 400 S.E.2d 175, 178 (1991). SeealsoRedinger v. Casteen, 36 Va. Cir. 479 (1995) (awarding fees); White Dog Publishing v. Culpeper Bd. of Sup., 272 Va. 377, 634 S.E.2d 334 (2006).
Imposition of Penalties: The Court will determine whether there has been a willful violation of the Act. Penalties will not be assessed where there is a technical violation of the Act. Mannix v. Washington County Board of Supervisors, 27 Va. Cir. 397 (Washington Cir. Ct. 1992).
In a judicial proceeding under the Open Meetings Act, the court will address any issue arising under the statute, including a request for an order in a particular pending meeting be open, establishing general rules concerning access to future meetings, and invalidating decisions made at illegal meetings. McComas v. Fayette Cnty. Bd. of Educ., 197 W. Va. 188, 475 S.E.2d 280, 289 (1996). Additional issues that a court may address would be whether "a governing body or member thereof has acted in good faith reliance upon an advisory opinion of the West Virginia ethics commission committee on open governmental meetings.” If a court finds such reliance provides that it shall constitute an "absolute defense to any civil suit or criminal prosecution." W. Va. Code § 6-9A-11.